SUPPLY AGREEMENT
between
Andrew Corporation and World Wide Wireless Communications, Inc.
This Supply Agreement ("Agreement"), effective this _(13th)__ day of March,
2000, is entered into by and between Andrew Corporation, a Delaware corporation
with offices located at 10500 West 153rd Street, Orland Park, Illinois 60462
("Andrew"), and World Wide Wireless Communications, Inc., a Nevada corporation
with offices located at 520 3rd Street, Suite 101, Oakland, California 94607
("WWWC").
RECITALS:
Andrew is a global manufacturer of communication products and systems,
including those utilized for Broadband Fixed Wireless Internet and Data
Transmission. WWWC is an operator-provider of Broadband Fixed Wireless Internet
and Data Transmission services worldwide. WWWC desires that Andrew be its
exclusive systems integrator and technical provider for WWWC's fixed broadband
wireless network systems and operations on a worldwide basis, and Andrew desires
the same, on the terms and subject to the conditions of this Agreement.
NOW THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. SCOPE
(a) During the term of this Agreement, Andrew will be the exclusive
provider of broadband wireless network systems and related technical
expertise for WWWC on a global basis. In this regard, Andrew will perform
the following from time to time: (i) design, analyze and engineer broadband
wireless network systems ("Broadband Wireless Network Systems")
applications in various geographic locations in consultation with WWWC;
(ii) use its commercially reasonable efforts to supply the required
component products (e.g., main transmit antenna, sectorized antenna,
transmitters or other base station equipment and related subscriber
equipment, including transceivers and modems) to WWWC for each location
based upon specifications approved by WWWC on the terms set forth in this
Agreement; and (iii) provide estimates and develop specifications in
consultation with WWWC for network operation centers. For each project
undertaken by Andrew pursuant to this Agreement, a specific scope of work
("Scope of Work") (including, timing, price, deliverables, etc.) will be
developed and agreed upon by the parties and attached to this Agreement as
Exhibit A. Upon acceptance and approval of the project design and
specifications by WWWC for a particular project, Andrew will install the
Broadband Wireless Network Systems or network operation center, as
applicable, in accordance with the agreed upon design and specifications
and the terms and conditions contain in this Agreement and the applicable
Scope of Work.
(b) Andrew will not provide installation of any modems, transceivers or
other products or systems to subscribers or customers of WWWC, although
Andrew will
provide training to WWWC and its installers of such modems, transceivers or
other products or systems at rates agreed upon by the parties from time to
time.
(c) In accordance with each Scope of Work, preliminary system
specifications will be developed by Andrew based on the engineering
analysis of data by WWWC and system operation requirements determined by
WWWC. Andrew will present the preliminary design and specifications of each
Broadband Wireless Network System to WWWC for its review and approval prior
to initiating any final design or manufacturing efforts. Upon WWWC's
approval of preliminary specifications for a specific system, such
specifications will be considered finalized and will be used as the
baseline for inspection and final acceptance of the delivered Broadband
Wireless Network System.
(d) WWWC agrees to use its commercially reasonable efforts to build
Broadband Wireless Network Systems and enlist subscribers as soon as
reasonably practicable. WWWC anticipates building six Broadband Wireless
Network Systems during the first 12 months of the term of this Agreement.
WWWC anticipates purchasing from Andrew an aggregate minimum of $2,000,000
of products and services under this Agreement in each 12 month period
during the term of this Agreement.
2. SYSTEMS AND PRODUCTS
Andrew will make its products, Broadband Wireless Network Systems and other
services available for purchase by WWWC in accordance with the terms of
this Agreement. Except as provided in paragraph 1 above, WWWC is not
obligated to purchase any minimum quantity of products, Broadband Wireless
Network Systems or services. However, for each Broadband Wireless Network
System designed or built by WWWC during the term of this Agreement, WWWC
agrees that it will purchase such Broadband Wireless Network System and
related products only from Andrew. In the event that a given Scope of Work
requires a component product that cannot be readily procured by Andrew in a
commercially reasonable manner (e.g., acceptable timing or quantity), WWWC
may procure such component part and supply it for such Scope of Work.
3. PRICES
(a) Unit prices for standard Andrew products ordered separately by WWWC
from time to time (and not as components of an Andrew supplied Broadband
Wireless Network System under this Agreement) will be at prices, as may be
modified by Andrew from time to time, no less favorable than prices charged
to other customers of Andrew similar to WWWC who purchase like products in
like quantities.
(b) Pricing for Broadband Wireless Network Systems and other services will
be determined for each individual system based on Andrew's preliminary
engineering design and specifications as approved by WWWC. Such prices will
include the engineering design, system specifications, manufacturing,
installation and system testing and any other items detailed in the
applicable Scope of Work.
2
(c) Prices for Broadband Wireless Network Systems, products and services
under this Agreement will not include sales, use, privilege, excise or any
other tax, duty, tariff or assessment that may arise from the sale of
products or services as described in this Agreement. In the event Andrew
becomes liable to pay or bear the burden of any such taxes (excluding
income tax), the amount will be added to the sale price of the product or
service being purchased.
4. ORDERING
(a) Broadband Wireless Network Systems, products and services to be
purchased under this Agreement will be identified on purchase orders issued
by WWWC and accepted in writing by Andrew. Each purchase order will
reference this Agreement and clearly identify Andrew's specification number
for the WWWC approved preliminary specifications, price and requested
delivery date. The Broadband Wireless Network Systems specifications will
be attached to the purchase order and become a part of the order.
(b) The terms and conditions contained in this Agreement will be applicable
to and govern each purchase order issued by WWWC pursuant to this
Agreement. Any preprinted terms and conditions appearing on WWWC's purchase
order form which are in addition to, in conflict with, or contrary in any
way to the terms of this Agreement, will have no force or effect on the
performance or completion of work as required by the purchase order.
(c) In the event WWWC cancels any purchase order for any reason after
Andrew has accepted or commenced performance on such order or for any
reason determines not to purchase any Broadband Wireless Network System,
product or service under this Agreement (excluding, however, any such
cancellation due to Andrew's breach or default under this Agreement), WWWC
agrees to compensate Andrew for the amount of all recorded project time for
its engineering analysis and design efforts and the amount of any
non-recurring engineering costs for the given Broadband Wireless Network
System, product or service, in addition to any other documented costs or
expenses and any other remedies Andrew may have at law or in equity. Such
amount will be paid by WWWC within 10 days after WWWC's receipt of
documentation from Andrew that substantiates such incurred costs and
expenses.
5. DELIVERY
(a) Delivery dates will be as agreed between WWWC and Andrew and set forth
on each purchase order.
(b) Delivery terms will be F.O.B., Origin, Andrew's manufacturing facility.
Andrew will arrange for, at WWWC's cost and expense, transportation of the
products and systems to locations specified by WWWC using its regular
carrier or a WWWC specified carrier on a prepay and bill basis.
3
(c) Title to products shipped against product only orders (not as part of a
Broadband Wireless Network System) will pass upon shipment from the F.O.B.
point and title to the Broadband Wireless Network Systems will pass to WWWC
upon successful completion of installation and system testing.
6. INVOICING AND PAYMENT TERMS
(a) Andrew will invoice product only orders upon shipment. Invoices for
Broadband Wireless Network Systems will be invoiced in progress payments as
provided in the applicable Scope of Work or purchase order. Each invoice
will include the purchase order number, Invoice number, quantity and price
of products shipped (for product only orders) or the progress payment price
for Broadband Wireless Network Systems or services, as the case may be, and
applicable sales or other tax, and total invoice price.
(b) Payment terms are Net 45 days from date of invoice or as otherwise
specified in the Scope of Work with respect to Broadband Wireless Network
Systems or services. All prices and payments will be in United States
Dollars.
(c) Past due payments are subject to a service charge of 1.5% per month
(18% annual) on the unpaid balance or the maximum rate permitted by state
law, whichever is lower.
(d) In the event any legal action or other proceeding is brought for the
enforcement of this Agreement, or as a result of the breach of any of the
provisions hereof, the prevailing party will be entitled to recover
reasonable attorneys' fees and other costs incurred in such action or
proceeding, in addition to any relief to which such party may be entitled.
7. INSPECTION AND FINAL ACCEPTANCE
(a) For standard product orders, as promptly as practicable, but in no
event longer than 45 days following delivery of products, WWWC will inspect
the products and either accept or reject the products as nonconforming to
the product specifications or defective in material or workmanship. Unless
WWWC notifies Andrew in writing of any rejected products within this 45 day
period, products will be deemed final accepted and, except as provided in
Andrew's warranty stated elsewhere herein, WWWC waives all claims of
nonconformity of the products.
(b) For Broadband Wireless Network Systems or custom products, WWWC will
have the right to witness installation acceptance testing or other testing
as set forth in the Scope of Work and will receive test reports provided by
Andrew. Except as otherwise provided in the applicable Scope of Work,
within 30 days after successful completion of installation testing or such
other testing, unless WWWC notifies Andrew of any discrepancies or
deficiencies in the system determined during the acceptance test, the
system will be deemed final accepted and, except as provided in Andrew's
warranty stated elsewhere herein, WWWC waives all claims of nonconformity
of the system. In the event of acceptance test delays in excess of 90 days
following installation and such
4
delays are not the fault of Andrew or in the event the system is used by
WWWC for 30 days, the system will be considered finally accepted.
8. WARRANTY
Andrew warrants that it has the right to enter into and perform this
Agreement and that its products and systems are transferred rightfully and
with good title; that its products and systems will be free from any lawful
security interest or other lien or encumbrance upon payment in full; and
that for a period of twelve (12) months after the date of final acceptance,
such products and systems will be free from defects in material and
workmanship which arise under proper and normal use and service and will
perform in accordance with the agreed upon specifications for the Broadband
Wireless Network Systems. WWWC's sole and exclusive remedy hereunder is
limited to Andrew's repair or replacement, at Andrew's election (either at
its plant or at such other place as may be agreed upon between Andrew and
WWWC) of such defects at no cost to WWWC. Transportation costs in
connection with the return of products or systems to Andrew's plant or
designated facility will be paid by WWWC. The provisions of this warranty
will be applicable with respect to any product or system that Andrew
repairs or replaces pursuant to it. ANDREW MAKES NO WARRANTY, EXPRESS OR
IMPLIED, OTHER THAN AS STATED ABOVE. EXPRESSLY EXCLUDED ARE THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE. THE FOREGOING WILL
CONSTITUTE ALL OF ANDREW'S LIABILITY (EXCEPT AS TO PATENT INFRINGEMENT,
WHICH IS ADDRESS IN A PARAGRAPH BELOW) WITH RESPECT TO THE PRODUCTS AND
SYSTEMS. IN NO EVENT WILL ANDREW BE LIABLE FOR SPECIAL, CONSEQUENTIAL OR
INCIDENTAL DAMAGES, INSTALLATION COSTS, LOST REVENUE OR PROFITS, OR ANY
OTHER COSTS OF ANY NATURE AS A RESULT OF THE USE OF PRODUCTS OR SYSTEMS
MANUFACTURED BY THE ANDREW, WHETHER USED IN ACCORDANCE WITH INSTRUCTIONS OR
NOT. IN NO EVENT WILL ANDREW'S MAXIMUM AGGREGATE LIABILITY EXCEED THE
PAYMENTS RECEIVED BY IT UNDER THIS AGREEMENT. No representative is
authorized to assume for Andrew any other liability in connection with the
equipment.
9. PATENT, COPYRIGHT AND TRADEMARK INFRINGEMENT ASSURANCE
Andrew will, at its own expense, indemnify, hold harmless, and settle or
defend any claim, suit or action which may be brought against WWWC for
infringement of US registered copyrights, trademarks or patents arising out
of WWWC's use of standard products manufactured by Andrew. This paragraph
will not apply to infringement arising out of features of construction
incorporated in any product or system under this Agreement or from the use
of the product or system for purposes other than as advertised, sold or
intended by Andrew. The foregoing states the entire warranty by Andrew for
patent infringement under this Agreement.
5
10. SOFTWARE
All software (including firmware) created and owned by Andrew and furnished
to WWWC as part of a Broadband Wireless Network Systems is on a licensed
basis and Andrew grants to WWWC a non-exclusive license to use such
software or firmware delivered with the Broadband Wireless Network System.
Such license may not be assigned, sublicensed or otherwise transferred by
WWWC without the prior written consent of Andrew. WWWC will not decompile,
copy, disassemble, decode, or reverse engineer any software delivered to
WWWC as part of a Broadband Wireless Network System or product. WWWC is
limited to one archival copy of any software delivered hereunder.
11. FORCE MAJEURE
Neither party will be held liable for delays in performing its obligations
under this Agreement or any purchase order issued hereunder if such delays
are due to causes beyond its reasonable control, including, without
limitation, acts of God, acts of the public enemy, acts of any government
or government entity, fires, floods, strikes, freight embargoes, unusually
severe weather conditions, inadequate transportation facilities or any
other cause whatsoever beyond the reasonable control and without the fault
or negligence of the party being delayed, whether similar to or dissimilar
from the causes enumerated herein. In the event of any such delay, the
delayed party will be given a reasonable extension of time within which to
perform its obligations.
12. TERM AND TERMINATION
(a) This Agreement will become effective as of the date first written above
and will remain in effect for a period of two (2) years therefrom unless
earlier terminated in accordance with the provisions stated herein;
provided, however, that this Agreement will thereafter renew for successive
one (1) year renewal terms, unless either party gives the other party
written notice for any reason at least sixty (60) days prior to the
expiration of the then current term or renewal term, as the case may be.
(b) If either party at any time defaults in fulfilling any of its
obligations under this Agreement or under any purchase order issued
pursuant to this Agreement, and fails to commence and continue such
appropriate actions as are necessary to remedy or cure the default
situation promptly after receiving written notice to do so, but in any
event within 90 days, then the non-defaulting party may give written notice
to the defaulting party terminating this Agreement or any individual
purchase order issued hereunder, but without prejudice to the remedies of
either party for the recovery of any monies due or to the rights of either
party with respect to any breach of any terms of this Agreement or any
individual purchase order issued hereunder.
6
13. GOVERNING LAW
This Agreement will be subject to the laws of the State of Illinois and its
interpretation, construction and the remedies for its enforcement will be
governed in accordance with Illinois law.
14. FINANCIAL INFORMATION
Until such time as WWWC has filed periodic and annual reports pursuant to
Section 13 of the Securities Exchange Act of 1934, as amended, and is
current in its obligations under such act, WWWC will provided to Andrew
internally prepared balance sheets as at the last day of each fiscal
quarter and the related statements of income and cash flows for each such
period. Andrew agrees to keep such financial information confidential in
accordance with the terms of paragraph 15 below.
15. CONFIDENTIALITY
The parties agree that the terms of this agreement and all data or
information (including, without limitation, financial information) provided
by one party to the other that the disclosing party identifies as
proprietary or confidential ("Confidential Information") will be used only
in connection with the performance of obligations under this Agreement and
will not be further disclosed or provided to any third party without the
express written consent of the disclosing party. The term "Confidential
Information" does not include any information that is (i) already available
or becomes available (other than through fault of the receiving party)
after disclosure within the public domain, (ii) already known by the
receiving party prior to receipt, (iii) disclosed to another unaffiliated
party by the disclosing party without similar restrictions, (iv)
independently developed by the receiving party, or (v ) required by court
order, governmental agency or applicable law to be disclosed. The receiving
party will treat such Confidential Information with the same degree of care
and safeguards that it uses to protect its own proprietary or confidential
information.
16. NOTICES
All notices, correspondence or other documentation required under this
Agreement will be deemed validly delivered when sent by registered,
certified mail or overnight mail, postage prepaid, to the party's principal
place of business stated on page 1 herein or to such other address as the
party may designate in writing to the other.
17. ASSIGNMENT
Neither party will assign, delegate or otherwise transfer by operation of
law or otherwise this Agreement, in whole or in part to a third party,
without the prior written consent of the other party, which consent will
not to be unreasonably withheld, except that either party may assign its
rights and delegate its obligations hereunder to wholly owned
inter-entities or sub-entities within its own organization.
7
18. DISPUTES AND ARBITRATION
Any controversy or claim arising out or relating to this Agreement,
including the construction and application of this Agreement, which cannot
be amicably resolved between the parties following good faith negotiations,
will be settled by arbitration in accordance with the then current rules of
the Center for Public Resources Rules for Non-Administered Arbitration of
Business Disputes. The arbitration will be held in Chicago, Illinois and
conducted by a single neutral arbitrator appointed in accordance with such
rules; however, such arbitrator shall be a retired state or federal court
(trial) judge with alternative dispute resolution service. The parties
acknowledge that the decision of the arbitrator will be final and binding,
and judgement may be entered thereon, with respect to findings of both law
and fact and will not be appealable to any court in any jurisdiction. The
cost of any arbitration will be allocated to each party by the arbitrator.
19. UNITED STATES EXPORT REGULATIONS
WWWC agrees to strictly adhere to all applicable export regulations as
published by the United States Department of Commerce from time to time
that may pertain to the Broadband Wireless Network Systems and products
purchased from Andrew, specifically the prohibitions against re-export of
technical data, hardware or software included as integral to the Broadband
Wireless Network Systems delivered hereunder.
20. SEVERABILITY
In the event any clause, provision or paragraph of this Agreement is held
to be illegal, invalid or otherwise unenforceable by any court of competent
jurisdiction, such clause, provision or paragraph will be deemed severed
from the Agreement but will not affect the validity of the remaining
clauses of the Agreement.
21. ENTIRE AGREEMENT
This Agreement and the exhibits contain the entire understanding of the
parties and supersedes all previous oral and written communications,
agreements and understandings between the parties with respect to the
subject matter herein. No change, modification or amendment of this
agreement will be binding unless made in writing and signed by authorized
representatives of both parties.
22. PUBLICITY
Except as otherwise required by applicable law or the rules of The Nasdaq
Stock Market, Inc., National Market, neither Andrew nor WWWC shall, or
shall permit any of their respective affiliates to, issue or cause the
publication of any press release or other public announcement with respect
to, or otherwise make any public statement concerning, the transactions
contemplated by this Agreement without the prior consent of the other
party,
8
which consent shall not be unreasonably withheld. The parties agree to
promptly issue a joint press release regarding this Agreement following the
execution of this Agreement.
23. MISCELLANEOUS
All rights and remedies of either party are cumulative (and not
alternative) of each other and of every other right or remedy such party
may otherwise have at law or in equity. The parties have participated
jointly in the drafting of this Agreement. Therefore, no presumptions or
burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any of the provisions of this Agreement. No amendment,
supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver of
any of the provisions of this Agreement shall be deemed or shall constitute
a waiver of any other provision hereof (whether or not similar), nor shall
such waiver constitute a continuing waiver unless otherwise expressly
provided. This Agreement may be executed and delivered with counterpart
signature pages of the parties and by facsimile transmission.
24. NON-SOLICITATION
During the term and any renewal term of this Agreement, and for a period of
eighteen months thereafter, WWWC will not, or attempt to, at any time in
any capacity, directly or indirectly, (a) induce or solicit any employee
(including leased employees) or consultants of Andrew or its affiliates to
leave his or her employment, (b) hire any such persons or interfere with
the relationship between Andrew or its affiliates and any such persons, (c)
solicit or interfere with the relationship between Andrew or its affiliates
and any then existing customer, supplier, licensee, licensor, franchisee or
other business relation of Andrew or its affiliates.
[SIGNATURE PAGES FOLLOWS]
9
IN WITNESS WHEREOF, the parties have executed this Supply Agreement as of
date first written above.
ANDREW CORPORATION WORLD WIDE WIRELESS
COMMUNICATIONS
- ------------------------------------- -------------------------------------
Signature Signature
- ------------------------------------- -------------------------------------
Name Name
- ------------------------------------- -------------------------------------
Title Title
10
EXHIBIT A
Scope of Work
[See Attached]